SZJUI v Minister for Immigration - [2008] FMCA 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 246

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – matter allowed – remitted to the Refugee Review Tribunal.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJUI”.

Migration Act 1958 (Cth), ss.91X, 414

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural Affairs (No.2) (2004) 144 FCR 1
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 124
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247

Applicant:

SZJUI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3562 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

27 September 2007

Delivered at:

Sydney

Delivered on:

6 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr J Smith

Counsel for the Respondents:

Mr G Kennett

Solicitor for the Respondents:

DLA Phillips Fox

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
A writ of certiorari shall issue directly to the second respondent quashing the decision of the second respondent handed down on 31 October 2006 in Refugee Review Tribunal proceedings 06046236.
A writ of mandamus shall issue directly to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 14 July 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3562 of 2006

SZJUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The male applicant was born in 1976 in Batticaloa in the Eastern Province of Sri Lanka. He claims his religion is Hindu and that he is of Eastern Tamil ethnicity. He claims to fear persecution in Sri Lanka due to his ethnicity and background. The applicant lists specific incidents which he claims have contributed to his fear. These include:
·   His lack of schooling due to the Tamil Tigers entering his school grounds and conducting meetings;
·   The army conducting search operations and interrogations
·   His arrest by the army in June 1998
·   The aftermath of the 2004 Tsunami where his property was damaged, he lost his belongings and suffered mental affliction
·   While working and living in Vakarai Pannichankeni after the tsunami, the Karuna group opened its main office near his house and threatened him at home on three occasions
·   The applicant lived in Colombo under different names as Tamils were randomly arrested by the army
The applicant arrived in Australia on 3 May 2006 and applied for a Protection (Class XA) visa on 5 May 2006. A delegate of the first respondent refused to grant the visa on 14 July 2006 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision on 31 October 2006 (reference 060646236), which is the decision the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
Both counsel assisted the Court with detailed written and oral submissions.
The amended application filed on 16 April 2007 contains two grounds supported by particulars.

Consideration

Subjective fear

The parties were in agreement that there was no issue between them if the Tribunal found on a thorough analysis that as the applicant had no subjective fear of persecution, he would not meet the definition of “refugee” and there would be no jurisdictional error. This would then result in the Court being able to refuse relief on a discretionary basis. Mr Kennett, for the first respondent, acknowledges that the first respondent faces difficulty in overcoming the expressed language of the decision. He concedes that the phrase “a well-founded fear” as used in the decision could be understood to mean subjective fear.
Mr Smith, for the applicant, argues that Mr Kennett faces a difficulty in that the term was used eleven times in the Tribunal decision. It was used in respect of the applicant’s claim to have feared harm in the past arising from incidents with potential connection to the government and pro-government militia. Mr Smith submits that it would be possible to excuse the Tribunal for using that awkward phrasing once or twice. However its repeated use becomes far more difficult to excuse.Mr Smith referred to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259 at [30]-[31]per Brennan CJ, Toohey, McHugh and Gummow JJ:
30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24):
"The reasons for the decision under review are not to be construedminutely and finely with an eye keenly attuned to the perception of error".
31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (26):
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
Mr Smith argues that just as the applicant cannot read the Tribunal’s decision with an eye keenly attuned to the perception of error, one cannot read it with an eye keenly attuned to the prevention of error or in other words to overlook what would otherwise be a clear error.
Mr Smith contends that the second problem with the argument that the use of “well-founded fear” was merely awkward phrasing is difficult to maintain, as the Tribunal was clearly aware of the different aspects of the definition of “refugee”. There had to be a subjective element as well as an objective element. The objective element was referred to and tested by the phrase “well-founded fear”. The Tribunal expressed its understanding of this distinction in the following passage of its “Findings and Reasons”:
The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant: Randhawa v Miea (1994) 52 FCR 437 at [451]. The mere fact that a person claims fear of persecution for a particular convention reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reasons claimed. It is for the Tribunal to be satisfied that all of the statutory elements are made out (Guo’s case at [596]). (CB 218.4)
Mr Smith submits the Tribunal made this comment after it used the term “well-founded fear” seven times and then went on to use it another four times.
Mr Smith submits that while there may be some force in the argument that the Tribunal’s logic was questionable if it relied upon travel between different countries to determine whether or not the fear was well-founded as opposed to genuine, this passage reveals that the Tribunal was aware of such a difference. Even if it had made an error of logic, that would not affect the decision one way or another.
Mr Smith further submits that the discussion of relocation is important. The discussion suggests that contrary to what it expressly stated in the decision, the Tribunal found that the applicant had no fear of persecution. However in making its relocation finding, it referred expressly to the possibility that the applicant had a subjective reason to fear and not wish to return to Batticaloa or Colombo (CB 221).
Mr Smith submits that the finding can only mean that the Tribunal thought that any fear held by the applicant was not well-founded. The fear that the applicant suggests may occur does not in fact have a real chance of coming to pass. As the Tribunal suggests in its relocation finding, there is a possibility of subjective fear. Mr Smith argues that it is only because of the possibility of subjective fear that the Tribunal made a finding in relation to relocation and in the circumstances, the suggestion that there was a finding of no subjective fear cannot be sustained.
Mr Smith contends that an argument would stand even if the Tribunal had found that there was no subjective fear. This nevertheless does not cover all the bases of fear claimed by the applicant.Mr Smith referred to the Tribunal’s finding about the applicant’s travel from Sri Lanka to Singapore and Malaysia and back:
Accordingly, the Tribunal is satisfied that the applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason because of his claimed past mistreatment by the Sri Lankan security forces, the LTTE or from the Karuna Group, and the Tribunal does not accept these claims. (CB 217.3, emphasis added)
Mr Smith submits that this finding is limited to those aspects of the claims that the applicant says arose from his detention in 1990 and 1998 and from the Karuna Group in 2004.
Mr Smith then referred to a further example relating to the applicant’s extended stay in Saudi Arabia. The Tribunal found that the applicant did not have a well-founded fear of persecution because his past would have prevented him from returning to Sri Lanka on three separate occasions and that he made no effort to seek international protection while outside Sri Lanka. Mr Smith contends that the Tribunal limited the applicant’s claim to fears arising from past actions and concluded that he was not a credible witness.
Mr Smith argues that all the reasons that have gone to the Tribunal’s subjective fear finding do not cover the possibilities that may now arise. They do not cover the possibility of harm arising because the applicant would return to Sri Lanka as a returned asylum seeker – a status he has never had. The findings also do not cover broad based discrimination against Tamils as opposed to the discrimination against young Tamil males who had previously been arrested, detained and beaten. Mr Smith argues that the finding is too narrow to suggest that the applicant had no subjective harm from his past. It does not take into account the extended range of circumstances that may lead to the applicant’s subjective fear of now returning to Sri Lanka. The applicant is a young Tamil male and his identity card identifies him as coming from the east of Sri Lanka, which, Mr Smith argues, were not mentioned in the Tribunal’s reasons.
Mr Smith submits that if, for example, the Tribunal had found that the applicant was not a Tamil or had not lived in the Middle East, then that would have dealt with the claims raised on the material on a level of generality as mentioned in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]. It is submitted that the failure by the Tribunal to deal with these claims was an error of law going to its essential task.
Mr Kennett indicated that there is no dispute between the parties that if the Tribunal had concluded that the applicant did have a subjective fear of being persecuted that would itself be in favour of his claim to be a refugee and that it would not matter whether the Tribunal had considered all of the possible factors upon which a fear might have been based. However, the parties are at issue about what conclusion the Tribunal did reach on the crucial threshold issue and on the existence or not of a subjective fear of persecution. Mr Kennett submits that the Tribunal’s reasons indicate that the applicant had no subjective fear of being persecuted.
Mr Kennett contends that the Tribunal placed great emphasis on the fact that the applicant had spent time in other countries without seeking protection and then voluntarily returned to Sri Lanka when he claimed he was in fear of being persecuted there (CB 216-217, 219.4, 219.6). The only relevance the Tribunal apparently gave this was that a person who genuinely feared persecution in Sri Lanka would not return voluntarily there several times. Mr Kennett argues that the preferable reading of the Tribunal’s reasons is that it regarded that the applicant did not have a genuine subjective fear of persecution and that is a complete answer to all the asserted failures to consider possible sources of persecution.
Mr Kennett then referred to the “Findings and Reasons” that the applicant had spent a significant amount of time in the Middle East and Malaysia and Singapore in 2006. The Tribunal considered why the applicant had been to all these countries and not sought refugee protection in any of them. It rejected the applicant’s explanation in the following passage:
Rather, the Tribunal is satisfied that the reason he did not apply for asylum in these three countries or sought to take the opportunity of his being outside Sri Lanka to go to a country where he felt he could seek international protection was, notwithstanding his experiences in Sri Lanka, the applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason in Sri Lanka. Indeed, as was put to the applicant in its letter of 6 October 2006, the Tribunal is satisfied that even though Malaysia and Singapore are not signatories to the Convention, if he genuinely had a well-founded fear of serious harm amounting to persecution for a Convention reason he would have approached a foreign mission or the UNHCR, especially if he did not have any money or his travel documents. (CB 216.7)
Mr Kennett concedes that the Tribunal does at several stages refer to a well-founded fear of persecution in this context. However, Mr Kennett suggests that this piece of the Tribunal’s reasoning is only directed at the applicant’s individual motivations. He submits that whether or not the applicant had voluntarily returned to Sri Lanka after being in other countries says very little about objective circumstances in Sri Lanka and almost nothing about whether the fear that he might have in Sri Lanka would be well-founded or not. However, it is significant in respect of the applicant’s individual motivations leaving the Tribunal to the conclusion that the applicant has embellished his claim and is not a credible witness.
Mr Kennett submits that the Tribunal then considers a set of particular claims of the applicant about episodes that he said had befallen him in between returning from the Middle East and leaving Sri Lanka again. The Tribunal expressed the view that those claims were not supported by evidence:
Further, the Tribunal has already found that the applicant does not have a well founded fear of serious harm amounting to persecution for a convention reason because of his claimed past mistreatment by the Sri Lankan security forces, the LTTE, or from the Karuna Group, at the Tribunal as if he would not have returned to Sri Lanka from Malaysia and Singapore in April/May 2006, just prior to coming to Australia. (CB 218.5)
The Tribunal then gave its impression of the applicant as a witness stating that he was evasive and unforthcoming. It referred to an explanation put forward by the applicant’s advisor about his demeanor:
…The Tribunal does not accept that the reason for the applicant’s evasiveness at the hearing was because of his experiencing on– going stress from the torture and trauma he claimed he experienced in Sri Lanka in 1990, 1998 or at any other time but he rather did this because he was firstly trying to minimise the significance of having been to Saudi Arabia for such a significant period without making any effort whatsoever to seek international protection and secondly because this demonstrates that the applicant did not have a well founded fear of serious harm amounting to persecution for a Convention reason in Sri Lanka. (CB 219.3)
Mr Kennett indicates that the above references are to motivation and the term “motivation” was used expressly by the Tribunal in the following paragraph:
The Tribunal was satisfied that the applicant’s repeated attempts to seek entry to Australia but not to go to other countries or to seek asylum/refugee status in the other third countries he visited raises the matter of his motivation and reasons for coming to Australia and indeed his motivation for requiring a Sri Lankan passport in another name (as he had been denied a visa on three occasions when he had previously applied to the Australian High Commission). (CB 219.5)
Mr Kennett contends that the Tribunal’s view is that the applicant has gone through all of this in order to come to Australia and, in light of his earlier travels, he did not do so because of an urgent need to get out of Sri Lanka.
Mr Kennett emphasised this issue as the Tribunal regarded the applicant’s actions as undermining his credibility, particularly the claim of having a subjective fear of being persecuted. In response to Mr Smith’s submission referring to the paragraph (CB 221.1) which contemplates that the applicant might have a subjective reason for not wanting to return to Batticalao or Colombo, Mr Kennett argues that this a finding was offered as a possible alternative conclusion. It allowed for the possibility that the main conclusion reached might be wrong.Mr Kennett submits that the Tribunal’s principle finding was that the applicant does not actually fear returning to Sri Lanka.
I am of the view that the competing arguments presented by both counsel raises doubt on the applicant’s subjective fear which prevents me from confidently determining this issue. Consequently I cannot be satisfied that the matter should end on that determination and therefore the other raised issues need to be addressed.

Ground one

1. The Tribunal constructively failed to exercise its jurisdiction by failing to consider claims that arose on the material before it.
Particulars
(a) the Sri Lankan authorities might not provide effective protection to the applicant because he is a Tamil;
(b) the applicant faced a risk of persecution because he was returning from the Middle East: Amnesty Report CB 140.10;

(c) the applicant faced a risk of persecution by reason of being a failed asylum seeker: Amnesty Report B 144-145.

Mr Smith submits in written submissions that part of the Tribunal’s duty under s.414 of the Migration Act 1958 (Cth) (“the Act”) when reviewing a decision of a delegate is to consider each and every claim and their component integers in order to complete an exercise of jurisdiction: Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 at [17]-[23] per Wilcox and Madgwick JJ; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J; Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ (Hayne J agreeing at [95]); NABE v Minister for Immigration & Multicultural Affairs (No.2) (2004) 144 FCR 1 at [55]; NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 124 at [29]-[31].
Mr Smith submits that the claims must be considered in the exercise of the Tribunal’s jurisdiction and are not limited to the case articulated by the applicant: Htun at [13]. Accordingly, this is a case where the Tribunal should have but did not examine issues arising from the material before it resulting in jurisdictional error: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [59] per Gleeson CJ and McHugh J.
Mr Smith submits that the Tribunal failed to consider three matters which are detailed in the particulars below and therefore failed to exercise its jurisdiction. It is submitted that a failure to have consideration to each of those matters will only go to jurisdiction of the Tribunal if they could have supported the applicant’s claim to be a refugee within the meaning of the Refugees Convention. Mr Smith referred to the Court Book and NABE (No.2) at [58]:
[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
Mr Smith identifies the following material which sets out the applicant’s claim:
i)The applicant’s statement: the applicant is a male of Tamil ethnicity from Batticealoa, Eastern province, Sri Lanka, whose worked as a contractor in building and roads (CB 27).
ii)An article sent by the applicant’s agent and lawyers to the Tribunal for the purposes of establishing his claim to be a refugee: “Amnesty International Australia – country information: Democratic Socialist Republic of Sri Lanka” (CB 133).
iii)the Amnesty International article which reads:
that business people, those who earn substantial income and those who turn from the Middle East where many Sri Lankans migrate for work), are particularly at risk as they are being targeted for taxes and extortion not only by the LTTE but also by other militant organisations including the Karuna faction. (CB 140.9)
iv)The same Amnesty International article under the heading “Lack of government protection of Tamils”:
…in April 2006, the Human Rights Watch asserts that the Sri Lankan government had failed to respond adequately to recent attacks by armed groups on ethnic Tamils and their homes and businesses in Sri Lanka’s eastern Trincomalee district. (CB 143.4)
…According to the Sri Lankan democracy forum (SLDF), the Sri Lankan government exhibits a “lack of seriousness” about the rights of its Tamil citizens. It has blamed the failure of its Tamil citizens. It has blamed the failure of investigations of “incompetence”, cover up and “lack of political will” adding, “the entire Bindunuwewa episode illustrates an ongoing culture of impunity in Sri Lanka, and the devastating consequences for minorities when they confront the institutionalised discrimination of the Sri Lankan state. (CB 144.6)
v)The Amnesty International article under “Returned Asylum Seekers”:
In report, the Council noted a number of problems that failed asylum seekers experienced when they returned to Sri Lanka. These include
·Deported Tamils arrived in Colombo come under pressure from security forces to return to their home area in the north west where fighting continues. This creates huge difficulties for the deportees. They cannot stay in Colombo in order to obtain Nics or other documents and they cannot travel to or within the north east without these documents.
·Many Tamils returned from other countries have been taken into custody at the airport under ER the PTA or the Immigrants and Emigrants Act. Arrests have been also made after entry, while staying in Colombo.
·Returning refugees are often suspected of raising funds for the LTTE, which is now a band organisation in Sri Lanka, India, Britain, Canada and the US. The LTTE was banned in January 1998 in Sri Lanka under emergency regulations.(CB 145.4)
vi)A letter to the Tribunal from the applicant’s solicitors. The letter focuses upon the applicant as a young, single Tamil from the eastern region of Sri Lanka. The backbone of that claim has distinctly changed since a 2002 ceasefire in Sri Lanka and particularly in the very recent years as supported by the 2006 report (CB 162.4).
vii)from letter in (vii)
The situation in Sri Lanka is more dangerous than before as an undeclared war is now going on and the LTTE and the Sri Lankan Security Forces target and persecute Tamils like the review applicant in Sri Lanka. (CB 163.10)
viii)Independent country information: “US Department of State, Sri Lanka, Country Report on Human Rights Practices 2005”. The situation regarding human rights is summarised as including arbitrary arrest and detention, torture, poor prison conditions and denial of a fair and proper trial (CB 165.6).
…During the year the Cabinet refused a 2004 request to compensate the next of kin of 960 missing persons and denied their request to compensate the next of kin of another 594 missing persons due to lack of death certificates.(CB 167.1)
d) Arbitrary arrest or detention
Law prohibits arbitrary arrest or detention; however, such incidents occur. There were 1,798 arrests while the emergency regulations were active. The government states that most of those arrested were released within a few days. (CB 168.3)
g) Use of excessive force and other abuses in internal conflicts
The LTTE routinely uses excessive force in the war, including attacks targeting civilians. (CB 170.3)
ix)A report from a website “TamilNet”:
…it is an enduring scandal that there has been virtually no convictions of government officials for killing Tamils, and many Tamils doubt that the rule of law will protect their lives. (CB 180.9)
…urged the civil society to join hands and pressure the Sri Lankan government to take urgent steps to stop the alarming escalation of abduction killings…” (CB 182.9)
x)The TamilNet article also talks about ordinary citizens such as auto-mechanics being abducted and killed (CB 186.5).
xi)The TamilNet article continues:
The LTT continued to recruit children, extort “taxes” and harass civilians in the north and east. (CB 188.3)
…There are many acts of disappearance, abduction, killings and extortion occurring in the capital city, Colombo, suburbs, that have gone unreported due to the reason of fear and logistics. (CB 189)
xii)A Tamil Guardian article from 26 July 2006, “Where are the ‘missing’ Tamils?” (CB 197) This article is about the abduction of Tamils and the killing of civilians who get caught in the crossfire between the military and LTTE forces. The article raises the question of whether the state is partly responsible because of its failure to protect Tamils and its discrimination against Tamils in general.
xiii)A Canberra Times article of 8 July 2006, “Sri Lanka on brink of all out war”:
…along the allies of Batticalaoa, and in the rice patties and Hindu temples that dot the countryside. Sri Lanka’s violence is perhaps felt nowhere as acutely as it is around Baticaloa, a large Tamil city under government control just kilometres from rebel territory.
More than half of nearly 700 people killed since April 2006 have been civilians. (CB 198)
Mr Smith submits that the Tribunal did not deal with these issues in its decision. To a certain extent, the Tribunal accepted that was a recent escalation in the violence which it reflected in its “Findings and Reasons”:
Further and notwithstanding the recent escalation in violence between combatants especially in the North and East of Sri Lanka, the Tribunal does not accept that there is a real chance that he would be detained by the authorities or any group when he returns to Sri Lanka or would be subject to serious harm from them for a Convention related reason including just because his ID card identifies him as a young, single Tamil from the Eastern part of Sri Lanka. Nor does the Tribunal accept his claim that there is a real chance he would be subjected to serious harm amounting to persecution because he is a young, single Tamil from the eastern part of Sri Lanka or he will have an imputed political profile given to him as an LTTE supporter due to his race and be suspected of involvement with the LTTE.(CB 220.4)
Mr Smith submits however, that the Tribunal did not say this was due to the applicant returning as a failed asylum seeker and his suspected of involvement with the LTTE. The “Findings and Reasons” continue:
And while accepting that as the advisor submits the situation in some parts of Sri Lanka is now more dangerous with the upsurge in violence between the LTTE and the security forces, the Tribunal is satisfied that the Applicant is not an activist for any of the waving factions and has not been able to satisfy itself that there is a real chance that the applicant will be detained and tortured by security forces and / or the pro-government Tamil military group in Colombo who will impugn him with a pro LTTE political opinion there is a real chance he could face arrest, detention or be subjected to mistreatment under questioning or detention, because of his imputed political opinion and/or eastern Tamil ethnicity. (CB 220.5)
Mr Smith submits that the Tribunal did not consider at all whether the applicant might be injured abducted or harmed, which appears to happen in clashes between the LTTE and its supporters and the authorities in Sri Lanka. It did not say what, if any, steps the government took to prevent this or why it did not. Mr Smith argues that the question was raised on the material before the Tribunal. However, the Tribunal did not deal with what might happen to the applicant at the airport in Sri Lanka if he returns. Nor does it deal with the possibility that he may be extorted or taxed as a citizen or as someone returning from the Middle East.
Mr Smith contends that the Tribunal concluded there was no well-founded fear of persecution for any of the reasons claimed by the applicant. In particular it accepted he was detained in 1990 and 1998, but denied any potential connection with the LTTE or the Karuna Group or that his detention resulted in the LTTE treating him with suspicion. The Tribunal indicated that the applicant would not be arrested and detained because he is a young Tamil from the eastern region and this fact is reflected on his identity card.
Mr Kennett in addressing ground one referred to NABE (No.2) Mr Kennett agrees that paragraph [58] of that decision (as referred to by Mr Smith) is important as are subsequent paragraphs. In particular NABE (No.2) at [60] refers to earlier cases in this grey area. The Court then states:
This does not mean that the Tribunal is only obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
Mr Kennett argues that the Tribunal is not obliged to comb through the material and postulate what claims might be made. The Tribunal is only obliged to deal with things that do arise before it in a clear way.
Mr Kennett contends that in NABE (No.2) at [61], the same expression is repeated. Their Honours referred to a number of cases and find that they are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the material before it. The Court then applied these principles at [68]:
[68] Although such a claim might have been seen as arising on the material before the tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the tribunal…
Mr Kennett submits the case that the applicant seeks to make is not one which will often be made out. The Tribunal is not obliged to read every piece of material to consider whether connections between them might give rise to a plausible claim for the applicant. The obligation to consider claims is limited to:
a)claims which are articulated; and
b)claims which clearly arise.
If the consequence of failing to consider a claim is that the Tribunal failed to perform its statutory duty, then it would follow that the claim is of a kind which the Tribunal is expected to see, think about and proceed from. However Mr Kennett submits that the Tribunal is expected to deal with claims that are made out and apparent without needing to be unreasonably looked for.
Mr Kennett addressed three matters in respect of the claim that the Tribunal had not dealt with the issue in its reasons:
a)The position of the applicant as a young Tamil male who normally resided in the eastern region of Sri Lanka
b)The applicant as a returnee from the Middle East.
c)The applicant returning to Sri Lanka as a failed asylum seeker.
Mr Kennett then referred to the Amnesty International report which was not prepared to assist the applicant but rather as a general report highlighting recent political developments in Sri Lanka (CB 133). The report was compiled from different sources referring broadly to the applicant’s circumstances. On the face of it, it was not compiled by someone focussed on the applicant’s individual circumstances.
Mr Kennett submits that the Tribunal did consider and reject the applicant’s claim of having a well-founded fear of persecution on the basis of being a Tamil. He submits that it rejected all claims that any group was seeking to target the applicant. The applicant would have to show that he faces a real chance of harm as an ordinary person in Sri Lanka.
Mr Kennett argues that the Tribunal found that the applicant was a person with no more chance of being harmed than anyone else in the country. The finding would have to be that there is a real chance of a well-founded fear arising in at least everyone of Tamil ethnicity in the region where the applicant lives and would be not be protected. Mr Kennett argues that for this argument to succeed, it would have to be accepted that the Tribunal considered the documents submitted by the applicant and considered whether drawing a connection between those pieces of information was something that the law in the light of NABE (No.2) requires the Tribunal to do on its own volition.
Mr Kennett further submits that the material before the Tribunal contains a single reference to people returning from the Middle East being the target of “taxes and extortion” (CB 140). This did not “clearly” raise that those returning from the Middle East faced persecution on that basis (as opposed to simply being perceived as fruitful targets), notwithstanding that an inquisitive decision-maker might have wondered whether such an argument could be made.
Mr Kennett submits that the applicant returned to Sri Lanka from the Middle East in 2004 and remained there until he travelled to Malaysia and Singapore in April 2006. There was no suggestion that he was extorted because of his time in the Middle East. Rather, he claims he was threatened by military groups (including extortion) because of his perceived links with other organisations (CB 217). This claim was rejected by the Tribunal.
Mr Kennett submits that if the applicant had returned to Sri Lanka after the Tribunal’s decision in 2006, he would evidently not have been returning from the Middle East. His arrival from Australia would have been approximately two years after he was last in the Middle East. The applicant simply does not come within the class of persons who return to Sri Lanka from the Middle East and face persecution on that basis.
With respect to the issue of whether the Tribunal addressed the applicant’s return to Sri Lanka as a failed asylum seeker, Mr Kennett contends that the Tribunal appeared to have regard to this in the way it summarised the Amnesty International report (CB 210). However as Mr Smith points out, the Tribunal did not return to this subject in the course its reasons. Mr Kennett maintains that the report states that failed asylum seekers are in a particularly vulnerable position and the authorities do not do enough to safeguard them. The report also indicates that among this class of people, Tamils are worse off. This may have been a factor which led the Tribunal to the different conclusion that the applicant faced harm as a Tamil, although Mr Kennett maintains that this is not a separate integer of the claim. The report also indicates that returned asylum seekers are often suspected of raising funds for the LTTE.
Mr Kennett submits that the applicant would not face persecution as a failed asylum seeker but rather because of the circumstances of his return to Sri Lanka and any perceived link to the LTTE. However, it is not a claim which requires separate consideration in itself. Mr Kennett concedes that the applicant’s return after seeking asylum in Australia may add to his difficulties as a Tamil from eastern Sri Lanka or as a person suspected of having links with the LTTE. It may have led the Tribunal to a different conclusion about the applicant’s real chance of persecution on these bases. Mr Kennett argues that if the evidence had been accepted, the Tribunal may have made a different finding of fact. Or, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630 at [46].

While I acknowledge the detailed submissions put by Mr Kennett, I am not satisfied that the Tribunal, having before it an applicant of Tamil ethnicity clearly identified as coming from the eastern region of Sri Lanka, and being aware of the circumstances of that ethnic group in that country, could read the applicant’s supporting material and overlook or not recognise the numerous references to the problems he may face on return to Sri Lanka. I am not satisfied that the member would have to comb through that material in order to become aware of those references. The passages identified by Mr Smith are pivotal to the applicant’s case. The applicant has articulated his claim and provided articles in support. I am not satisfied that the issues addressed in that material are of a different nature to the applicant’s claim, or that they were not identified. In the circumstances, I believe that the matter should be remitted for reconsideration.

Ground two

2. The Tribunal erred in law by failing to properly apply the relocation principle in that it did not take into consideration all of the relevant circumstances.
Particulars
(a) The circumstances that the Tribunal ought to have considered included the information from Amnesty International at CB 144-5.

In the circumstances, I do not believe it is necessary to consider this ground.

Conclusion

I believe that the matter must be returned to the Tribunal for proper consideration of the applicant’s claims.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 6 March 2008